BVA9511925
DOCKET NO. 88-43 328 ) DATE
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to service connection for skin disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to March
1970. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from an April 1987 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in San Juan, Puerto Rico.
In February 1990, the Board remanded the veteran's case to
the RO for further consideration. The RO deferred making a
decision in the case pending completion of new regulations
concerning Agent Orange claims. In September 1994, the RO
denied service connection for skin disability on an Agent
Orange basis. The case was thereafter returned to the Board
for appellate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he developed chronic skin
disability while serving in Vietnam as a result of his
exposure to Agent Orange.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the RO’s November 1976 decision severing
service connection for skin disability was clearly and
unmistakably erroneous; therefore, restoration of service
connection for skin disability is warranted.
FINDING OF FACT
Evidence reasonably establishing the onset of chronic
folliculitis during service was of record at the time of a
November 1976 rating decision severing service connection for
folliculitis.
CONCLUSIONS OF LAW
1. A November 1976 rating decision severing service
connection for skin disability was clearly and unmistakably
erroneous. 38 C.F.R. § 3.105(a)(d) (1994).
2. Skin disability was incurred in wartime service.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1994).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
No service treatment records are of record. In a report of
medical history completed in connection with a March 1970
separation examination, the veteran reported a history of
skin disease. The veteran’s original claim for VA
compensation was received in June 1970, a few months
following his discharge from service. He claimed entitlement
to service connection for skin disability, alleging that the
condition originated in October 1969, when he was serving in
Vietnam. He underwent a VA examination in August 1970 and
was found to have folliculitis. Based upon the above
evidence, service connection was granted for folliculitis by
rating decision of September 1970. Folliculitis was also
diagnosed on VA examination in October 1974. Severance of
service connection for folliculitis was proposed by rating
decision of August 1976. Service connection for folliculitis
was severed by rating decision of November 1976. In essence,
the RO determined that the September 1970 rating decision
granting service connection for folliculitis was clearly and
unmistakably erroneous since service medical records
documented no skin complaints or treatment.
In the Board’s judgment, the RO’s November 1976 severance
action was clearly and unmistakably erroneous. In this
regard, the Board notes that the service medical records
before the rating board were incomplete; none of the
veteran’s service treatment records were available. The
limited available service medical records did show that the
veteran reported a history of skin disease. Moreover,
shortly after service the veteran filed a claim for service
connection for skin disability, and VA confirmed the presence
of skin disability. No evidence suggesting that the disorder
originated before or subsequent to service was of record.
Accordingly, restoration of service connection for skin
disability is warranted.
ORDER
Restoration of service connection for skin disability is
granted.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.